Wednesday, April 8, 2015

PERB Greatly Expands Representation Rights to Include Interactive Process Meetings

The Americans with Disabilities Act requires an employer to accommodate an employee’s disability. The employer must meet with an employee and discuss reasonable accommodations. Does an employee get a representative at these meetings? The Public Employment Relations Board answered this question with a resounding “yes” in Sonoma County Superior Court (2015) PERB Decision No. 2409-C.

In the case, a trial court employee was diagnosed with a serious illness. She requested a meeting with her employer to discuss reasonable accommodations. She wanted a union representative during the meetings. The employer said no. The union filed an unfair practice charge.

PERB held an employee has a right to representation during an interactive process meeting. An employee may have a representative present in two contexts. First, an employee has a right to a representative during a discipline proceeding. Second, the employee has a right to a representative when engaging in labor activities. This includes activities like filing a grievance or bargaining.

PERB decided an ADA meeting is like a grievance. The meeting is a negotiation on the appropriate accommodation. This directly concerns working conditions. This is the perfect scenario for a labor representative. The representative has unique knowledge of the labor relationship. The representative can use this knowledge to negotiate with the employer. Thus, the employee must be allowed a representative during an interactive meeting.

Employees are often stressed and concerned when engaging in the interactive process. Employers can take advantage of this stress and exploit the employee. A representative can protect the employee and level the playing field during these negotiations.